Attentive Mobile Inc. v. Stodge Inc., 1:23-cv-00087

Attentive Mobile Inc. sued Stodge, Inc. d/b/a Postscript alleging infringement of three U.S. patents.
Postscript moved for summary judgment on all of Attentive's claims of infringement regarding a specific functionality, the "SMSRedirectTest() theory."
The court granted Postscript's motion for summary judgment, concluding all claims of infringement related to the SMSRedirectTest, including induced infringement.
Attentive filed letter briefs arguing that its induced infringement claims survived the order, asserting they were not properly addressed by the earlier summary judgment motion.
Postscript argued that its summary judgment motion covered all types of infringement (direct and induced) and that Attentive forfeited any contrary argument by not raising it in response to the motion.
The court found that Attentive failed to contest the induced infringement issue in its summary judgment briefing, thus waiving the argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of Summary Judgment	Order did not reach induced infringement claims	Motion sought judgment on all infringement, including induced	Order applied to all infringement theories, including induced
Notice of Claims at Issue	Only direct infringement was at issue, not induced	All claims of "infringement" covered every theory	Court agreed "infringement" encompassed both direct and induced
Sufficiency of Briefing	Raised induced infringement after summary judgment	Induced theories were not briefed in response; thus waived	Court held argument was waived due to failure to raise during briefing
Timing of Arguments	Raised at oral argument, not in briefs	Only raised in court, not in writing	Court reaffirmed argument must be raised in briefs, not at oral argument

Tomasko v. Ira H. Weinstock, P.C., [citation="357 F. App'x 472"] (3d Cir. 2009) (party cannot prevail on arguments raised for the first time at oral argument)